Amendment of the 1978 Constitution | Daily News

Amendment of the 1978 Constitution

No constitution tries to put down all the relevant rules relating to constitutional law. The draftsmen of written constitutions are faced with the problem of how much to include. The draftsmen must ensure that they include fundamental principles and place some restrictions on an amendment so that the Constitution will have some degree of permanence and will not be manipulated to suit the purposes of the party in power. The Constitution should not also make amendments to it too difficult because it will not be possible to adapt and mould the Constitution to suit changing circumstances or to apply to it circumstances not foreseen by the draftsmen.

Chapter XII of the 1978 Constitution - Amendment of the Constitution – by Articles 82, 83 and 84 makes provisions for the amendment of the Constitution. Article 82(7) states that in Chapter XII of the Constitution, the amendment includes the repeal, alteration or addition. Article 80(3) is also important here that upon the Bill becoming law upon the certificate of the President or the Speaker as the case may be, no Court, Tribunal can inquire into, pronounce upon the validity of such action on any ground whatsoever.

Article 82

Article 82 of the Constitution specifically requires any amendment or the repeal of the Constitution to be express. Accordingly, in terms of Article 82(1) no Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provisions to be repealed, altered or added and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.

As provided in Article 82(2) of the Constitution, in the case of a Bill for the repeal of the Constitution, it is essential that such a Bill must contain provisions replacing the constitution too and such Bill should be described in the long title thereof as being an Act for repeal and replacement of the Constitution. Article 82(3) provides that in the opinion of the Speaker if the Bill does not comply with the aforesaid requirement – Articles 82(1) and 82(2) – the Speaker shall direct that such Bill should not be proceeded with unless it is amended so as to comply with those requirements.

As provided in Article 82(4) of the Constitution, notwithstanding anything in the preceding provisions of this Article it shall be lawful for a Bill which complies with the aforesaid requirements of 82(1) and 82(2), to be amended by Parliament provided that the Bill as so amended shall comply with those requirements.

How does the Bill become law is provided for in Article 82(5) of the Constitution. Accordingly, a Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution becomes law, if the number of votes cast in favour thereof amends to not less than two thirds of the whole number of Members (including those not present), and upon a certificate by the President or the Speaker as the case may be, being endorsed thereon in accordance with the provisions of Article 79 or 80.

Articles 79 and 80 are found in Chapter XI – the Legislature – Procedures and powers- of the Constitution. In terms of Article 79 which is titled certificate of the Speaker, the Speaker shall endorse on every Bill passed by Parliament a certificate. Such certificate may state the majority by which such Bill was passed. However, such certificate of the Speaker is subject to two provisos as found in the same Article as given below.

  •  Where by virtue of provisions of Articles 82 or 83 or 84 or 123(2), a special majority is required for the passing of a Bill, the Speaker shall certify such Bill only if such Bill has been passed with such special majority. Article 82, 83 and 84 have been explained earlier. Article 123 which is found in Chapter XVI – the Superior Courts- the Supreme Court – relates to the determination of the Supreme Court in respect of Bills.
  •  Article 123 (1) states that the determination of the Supreme Court needs be accompanied by the reasons therefore, and shall state whether the Bill or provision thereof is inconsistent with the Constitution and if so which provision or provisions of the Constitution. Article 123 (2) provides for the following in summary form:

(a) Whether such Bill is required to comply with the provisions of Article 82(1) and (2) or

(b) Whether such Bill or any provision thereof may be passed by special majority required under Article 84(2) or

(c) Whether such bill or provision thereof requires for its passing special majority under Article 84(2) and approval by people at a Referendum under Article 83.

As also provided in Article 123 (2) of the Constitution, the Supreme Court may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent.

Article 80: When Bill becomes law

  •  Article 80(1) provides that a Bill passed by Parliament becomes law when the certificate of the Speaker is endorsed thereon. However, 80(1) is subject to the provisions of paragraph (2) of this Article. This Article 80(2) lays down three instances in which case the approval of the people at a Referendum and the certificate of the President are also required.
  • Where the Cabinet of Ministers has certified that any Bill or any provision thereof is intended to be submitted for approval by the people at a Referendum or
  •  Where the Supreme Court has determined that the Bill or any provision thereof requires the approval of the people at a Referendum or
  •  Where any Bill is submitted to the people by referendum under Article 85(2).

Article 85(2) found in Chapter XIII – the Referendum – provides that the President in his discretion shall submit to the people by referendum any Bill (Not being a Bill for the repeal or amendment or any provision of the Constitution or for the addition of any provision to the Constitution or for the repeal and replacement of the Constitution or which is inconsistent with any provision of the Constitution which has been rejected by Parliament.

Then such Bill or such provision shall become law upon being approved by the people at a Referendum in accordance with Article 85(3) of the Constitution when the President certifies that the Bill or provision thereof has been so approved. Article 85(3) of the Constitution found in Chapter XIII- the Referendum – reads as follows: ‘any Bill or any provision in any Bill submitted to the people by referendum shall be deemed to be approved by the people if approved by an absolute majority of the valid votes cast at such Referendum.

Provided that when the total number of valid votes cast does not exceed two-thirds of the whole number of electors entered in the Register of Election, such Bill shall be deemed to be approved only if approved by not less than one – third of the whole number of such electors.

Article 83 of the Constitution

Article 83 of the Constitution found in Chapter XII – The Legislature – Amendment of the Constitution - makes provision for approval of under mentioned Bills at a Referendum.

  •  A Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of this Article and
  •  A Bill for the amendment or for the repeal and replacement of Article 30(2) or Article 62(2) of the Constitution which would extend the term of office of the President or duration of Parliament as the case may be to over six years (with the 19th Amendment durations/ terms has been reduced to five year each.

Accordingly, aforesaid Bills become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members, (including those not present), is approved by the people at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80.

Article 84 of the Constitution

Article 84 of the Constitution deals with the passing of Bills inconsistent with the Constitution. As provided in Article 84(1), Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of Article 82(1) of the Constitution. Article 84(2) provides two grounds on which the aforesaid Bills can be placed on the Order Paper of Parliament without complying with Article 82(1) and (2).

  •  Where the Cabinet of Members has certified that a Bill is intended to be passed by the special majority by this Article.
  • Where the Supreme Court has determined that a Bill requires to be passed by such a special majority.

The aforesaid Bills become law only if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not presented) and a certificate by the President or the Speaker as the case may be is endorsed thereon in accordance with the provisions of Articles 80 or 79.

Article 84(3) states that when such a Bill is enacted into law, such law shall not and shall not be deemed to amend, repeal or replace the Constitution or any provision thereof and shall not be so interpreted. Article 84(3) further provides that thereafter such law made under Article 84 as discussed above may be repealed by a majority of the votes of the Members present and voting. This Article arguably dilutes the supremacy of the Constitution and is therefore undesirable. Article 84 – which had its equivalent under the 1972 Constitution as well – may be described as an attempt to replicate the supremacy of the Westminster Parliament, but that is something unique to Britan’s ‘unwritten’ Constitution that cannot be replicated anywhere else.

(The writer is a Retired Professor of Law of the University of Sri Jayewardenepura. He is an Attorney-at-Law with PhD in Law as well).

To be continued tomorrow


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